Cook v. Podgorski, 2013 NSCA 47

NOVA SCOTIA COURT OF APPEAL Citation: Cook v. Podgorski , 2013 NSCA 47 Date: 20130418 Docket: CA 404881 Registry: Halifax Between: James D. Cook Appellant v. Mary-Ann Podgorski Respondent Judges: The Honourable Justices Saunders, Oland and Bryson, JJ.A Appeal Heard: March 26, 2013, in Halifax, Nova Scotia Held: Appeal dismissed with costs to the respondent in the amount of $4,500, inclusive of disbursements, per Bryson, J.A.; Saunders and Oland, JJ.A, concurring. Counsel: Kathryn M.

Dumke, for the appellant Peter Rumscheidt, for the respondent Reasons for judgment : INTRODUCTION: [ 1 ] When neighbours in Lunenburg County fall out, they sometimes “go to law”. On November 9, 2010, Mary-Ann Podgorski brought suit against James Cook because he claimed some of what she understood to be her land. That was not the idyll she was dreaming of when she moved from Calgary to Riverport in 2007.

[ 2 ] Ritcey Cove is the last picturesque inlet that anticipates the mouth of the LaHave River where it empties into Mahone Bay. Riverport is a small unincorporated community whose original European settlement dates from 1754. These early settlers were mostly German. The lands were divided into rectangular lots accessing the water, running parallel to each other. [ 3 ] As the river’s name implies, the French preceded the Germans. In 1634, they built a small fort across the river from what is now Riverport. French records describe seasonal visits to these shores by the Mi’kmaq during the summers.

It is a quiet and charming corner of the county and one of the loveliest in the Province. [ 4 ] Ms. Podgorski purchased approximately 7 ½ acres in 2007 from Brian Hall and Sandra Parsons. Her property is bordered on the south by Ritcey or Ritcey’s Cove (an Anglicisation of the German “Henericie”). It is bisected by public highway no. 442, locally known as the “North Side Road”. So she has two lots - one above or north of the road on which her house sits and one water front lot of about ½ an acre south of the road - or at least so she thought.

As she later discovered, her eastern neighbour below the road claimed part of the water front lot. James Cook alleged that he and his predecessors owned and/or occupied about half of Ms. Podgorski’s water front lot for at least 60 years. [ 5 ] Ms. Podgorski retained Nova Scotia land surveyor Peter Berrigan to survey the water front lot. He was satisfied that the Cook- Podgorski boundary was where Ms. Podgorski thought it was - so she owned all the waterfront lot. James Cook persisted in his claim. Ms. Podgorski wished to sell but could not do so without resolving the boundary line.

After consulting counsel, she brought legal proceedings for trespass and damages. The matter proceeded by way of “application in court” with the filing of affidavits and cross- examination in open court. The Honourable Justice Kevin Coady found in Ms. Podgorski’s favour but declined to award damages. BACKGROUND: [ 6 ] The arguments of the parties are difficult to follow without the assistance of visual cues. Accordingly, attached as a

schedule to this decision is a reduced copy of a survey plan of lands “conveyed to and occupied by James D. W. L. Cook”, dated January 21, 2011 and prepared by Robert C. Becker, N.S.L.S., who had been retained by James Cook to survey his land, (the “Becker Plan”). The most eastern lot on the Becker Plan is owned by Mr. James Cook’s brother, Barry Cook and his wife, Barbara. This lot was conveyed in 1987 to Barry Cook by Annie Morlean Cook, who was Barry and James Cook’s mother. The deed sets out a metes and bounds description with courses and distances that accord with the Becker Plan.

The Barry and Barbara Cook lot was first surveyed in 1983 by Mr. Becker. The structure shown on this lot was the Cook family home and was previously occupied by Annie Cook and her family. [ 7 ] The James Cook lot was occupied by him in the early 70's. He built the dwelling house and other structures shown on this lot. There are three deeds to him from his mother - the first in 1977. But all descriptions are identical with the courses and distances depicted on the Becker Plan. Both Cook lots originate with deeds in 1906 and 1918 to James Cook’s grandfather, William Cook.

Those deeds refer to abutters but do not provide courses or distances. Each lot was described as one acre “more or less”. [ 8 ] Immediately west of the James Cook lot is an area identified by Mr. Becker on his Plan as “lands occupied by James D. Cook”. Ownership of these lands is disputed between the parties, (the “disputed lands”). [ 9 ] As previously indicated, Mary-Ann Podgorski acquired her property in 2007. Her deed contains two descriptions: one describes the land north of the North Side Road; the second describes the land between the road and Ritcey Cove.

These lots originate in a 7.5 acre lot which mentions abutters, but no courses or distances. [ 10 ] The Podgorski lands have been migrated under the Land Registration Act , S.N.S. 2001, c. 6. The Cook lands have not been migrated. ISSUES: [ 11 ] James Cook now appeals Justice Coady’s decision of May 2, 2012 and consequent order of June 14, 2012, settling the boundary line between him and Ms. Podgorski ( 2012 NSSC 174 ). Mr. Cook alleges that Justice Coady:

1. failed to identify and/or consider relevant material facts and critical evidence adduced in support of Mr. Cook’s defence; 2. ignored relevant evidence regarding deed descriptions of the disputed property; 3. inappropriately ruled certain evidence inadmissible as hearsay when it was offered to establish why Mr.

Cook believes himself tobe the owner of the disputed lands; 4. ignored applicable case law regarding the law of survey; 5. erred in law and fact by not applying relevant survey law to the facts before him; 6. erred in law and fact by failing to apply relevant principles of adverse possession to the evidence before him. Standard of Review [12] In a recent land dispute decision, this court discussed the standard of review: [7]An appeal is not an opportunity for an appellant to retry the case. Our ability to intervene and change the decision of a trial judge isvery limited. As Justice Thomas A.

Cromwell said in Children's Aid Society of Cape Breton-Victoria v. A.M., 2005 NSCA 58: [26]This is an appeal. It is not a retrial on the written record or a chance to second guess the judge's exercise of discretion. Theappellate court is not, therefore, to act on the basis of its own fresh assessment of the evidence or to substitute its own exercise ofdiscretion for that of the judge at first instance. This Court is to intervene only if the trial judge erred in legal principle or made apalpable and overriding error in finding the facts.

The advantages of the trial judge in appreciating the nuances of the evidence and inweighing the many dimensions of the relevant statutory considerations mean that his decision deserves considerable appellate deferenceexcept in the presence of clear and material error: [citations omitted]. [Emphasis added] [8]The infelicitous expression "palpable and overriding error" simply means that any factual error must be clear and material to thefactual conclusion which is challenged. The Ontario Court of Appeal put it this way in Waxman v.

Waxman (2004), (ON CA), 186 O.A.C. 201: 296The "palpable and overriding" standard addresses both the nature of the factual error and its impact on the result. A "palpable" erroris one that is obvious, plain to see or clear: Housen at 246.

Examples of "palpable" factual errors include findings made in the completeabsence of evidence, findings made in conflict with accepted evidence, findings based on a misapprehension of evidence and findings offact drawn from primary facts that are the result of speculation rather than inference. 297An "overriding" error is an error that is sufficiently significant to vitiate the challenged finding of fact.

Where the challenged findingof fact is based on a constellation of findings, the conclusion that one or more of those findings is founded on a "palpable" error does notautomatically mean that the error is also "overriding". The appellant must demonstrate that the error goes to the root of the challengedfinding of fact such that the fact cannot safely stand in the face of that error: Schwartz v. Canada, (SCC), [1996] 1S.C.R. 254 at 281. [9]Waxman has been endorsed by our court: Mason v. Partridge, 2005 NSCA 144 at ¶ 16, and Flynn v.

Halifax (Regional Municipality),2005 NSCA 81 at ¶ 14; also see: Sable Mary Seismic Inc. v. Geophysical Services Inc., 2012 NSCA 33 at ¶ 59.

[10]The

interpretation or construction of a deed is a question of law (Metlin v. Kolstee, 2002 NSCA 81 at ¶ 70 ). The first principle of construction is to give effect to the words in the whole deed; ( Knock v. Fouillard , 2007 NSCA 27 at ¶ 27 ). But in land actions a dispute may not always be resolved simply by looking at deeds or other instruments. Sometimes it is necessary to have evidence of the appearance and condition of the land itself to assess to what extent it accords with the instruments that allegedly refer to it.

Such is the case here where there is a dispute about what lands are actually referred to in the deeds put forward in evidence. [11]To assist themselves and the court, both parties retained surveyors to depict the land or express opinions concerning whether the Island was included in their respective chains of title. For the trial judge, this means making decisions of both law and mixed fact and law. From the Court of Appeal's point of view, we will review the judge's

interpretation of deeds for errors of law. For mixed findings of fact and law without an extricable question of law, we use the "palpable and overriding" error standard. It is not enough that we may disagree with the trial judge's

interpretation of evidence. We cannot change findings of fact unless the trial judge makes a clear and material error of fact. [ MacDuff v. 3209292 Nova Scotia Ltd. , 2013 NSCA 31 ] [ 13 ] Grounds 1, 2, 4 and 5 essentially re-argue the evidence before the judge. Much of Mr. Cook’s argument under the various “issues” is repetitive. For example, the survey evidence adduced on behalf of Ms. Podgorski is attacked under all four headings. Both Ms. Podgorski’s surveyor and the judge are accused of failing to consider appropriate survey principles, and failing to properly apply those principles to the facts.

Absent an extricable question of law, the standard of review for these four issues is palpable and overriding error. That standard also obtains regarding ground 6 - application of adverse possession principles to the facts. The third issue - admissibility of hearsay - is a question of law, reviewed on a correctness standard, ( R. v. D.M. , 2007 NSCA 80 at 19) . For convenience, this issue will be addressed following consideration of grounds 1, 2, 4, and 5. Issue 1: Failure to identify and/or consider relevant evidence [ 14 ] Mr. Cook faults the application judge for favouring the opinion of Ms.

Podgorski’s surveyor, Peter Berrigan. Mr. Cook criticizes Mr. Berrigan’s methodology and therefore the judge’s conclusions in reliance on Mr. Berrigan. That criticism begins with the following findings: [10] Mr. Berrigan testified that he started his field work by locating established Nova Scotia coordinate monuments. These are monuments that contribute to a provincial mapping system and they are used as a starting point when searching for private survey markers or other such evidence. Mr. Berrigan located provincial marker 16755 (see Exhibit #13) approximately 4000 feet from Mr. Cook's property.

He was then able to use a global positioning system to locate three monuments set by earlier surveys of the Cook property. Using established legal descriptions he was able to locate markers on three corners of the disputed area. [11] Mr. Berrigan's research material indicated that there should be a fourth marker ("B" in Exhibit #13). He was unable to locate that marker and felt it had been buried or disturbed by the infilling of the area. Mr. Berrigan replaced that marker with full confidence that it was in the same spot as indicated in survey notes compiled in 1983.

He testified that he was able to locate the four corners of the area based solely on survey principles rather than other things on the ground such as trees and posts. [ 15 ] Mr. Cook challenges these findings. He says that all Mr. Berrigan really did was to extend Ms. Podgorski’s eastern boundary above (north of) the North Side Road in a southerly direction to Ritcey Cove. He thereby incorrectly fixed the Cook-Podgorski boundary line. Mr.

Cook says this is unreliable because that extension was not based on any previous survey plan, but simply 1983 survey notes of another surveyor (Lester Berrigan) regarding survey work done north of the road. It could not settle any boundary south of the road. Mr. Cook concludes on this point: No evidence was led whatsoever to support Berrigan’s conclusion as to the dimensions of the property under dispute by projecting the line above the road across the property to the seashore. In fact, he admitted after being pressed “Yes, an approximate projection...”. [ 16 ] In fact, this was not all that Mr.

Berrigan relied upon, nor was it all that the judge relied upon:

[12] The legal description of Mr. Cook's property indicates a lot roughly 100 feet by 200 feet bordered between the highway and thewaters of Ritcey Cove. It also indicates that it is located on the eastern side of a lot formerly owned by his mother and now owned by hisbrother. Mr. Berrigan's survey confirms these dimensions and location. [13] It is also confirmatory that Mr. Berrigan's "A" to "B" line (see Exhibit #13) is parallel with other property lines in theneighbourhood. It is also in line with the property line of the Podgorski property above the highway.

Both of these factors give meconfidence in the accuracy of Mr. Berrigan's survey. [Emphasis added] [17] Here, the judge began by referring to the only two metes and bounds descriptions in Mr. Cook’s chain of title which containdistances. The description in Mr. Cook’s 1977 deed describes a lot 100 feet along the North Side Road and 200 feet deep to Ritcey Cove.It is approximately 19,000 square feet. The second description is contained in the 1987 deed from Annie Cook to her son Barry Cook.This is the lot immediately to the east of James Cook. The distance of each boundary is described.

It refers to an area of approximatelyone acre. These two lots together represent the Cook lands which Annie Cook gave to her sons. Both surveyors agreed on the westernboundary line of Annie Cook’s (now Barry Cook’

s) lands. That boundary is known as the “Myra line”. When one measures westerlyfrom the Myra line to the western boundary of James Cook’s property, that western boundary coincides with the southern extension ofMs. Podgorski’s eastern boundary north of the public road. To conclude: the Cook property descriptions confirm Mr. Berrigan’s locationof the Cook-Podgorski boundary line. [18] Then Mr. Cook complains that Mr. Berrigan and the judge failed to take into account the surveyor’s “hierarchy of evidence”,citing the Ontario Court of Appeal in Nicholson v. Halliday, (2005) (ON CA), 193 O.A.C. 240, which refers to the1983

article of Lorraine Petzold, an Ontario land surveyor, known as: “The Survey and The Real Estate Transaction”. Lang, J.A. reliedon that

article to rank the evidence to be considered to re-establish a boundary: 1. natural boundaries; 2. original monuments; 3. fences or possession that can reasonably be related back to the time of the original survey; 4. measurements (as shown on the plan or as stated in the metes and bounds description). [19] Mr. Cook says these principles were ignored by Mr. Berrigan and the judge. In particular, Mr. Cook submits that Mr. Berrigan andthe judge ignored “indices of occupation” such as a driveway on Mr.

Cook’s property and a drain alleged to be coming from thePodgorski home onto the disputed lands. [20] It is unnecessary to decide in this case whether this “hierarchy of evidence” should apply in Nova Scotia. One would have thoughtthat the application of the “hierarchy of evidence” and related survey principles would initially be a matter for the expertise and opinionof the surveyors in question.

So, for example, whether monuments were “original” or whether “fences or possession” can be reasonablyrelated back to the “time of original survey” would be matters of expert opinion for a surveyor. [21] But in this case, the driveway and drainpipe to which Mr. Cook refer have doubtful, if any, relevance for establishing the Cook-Podgorski boundary line. They are not contained in any boundary descriptions. Their relevance depends upon drawing inferences fromtheir locations to try and tie them into boundaries. They are not in themselves indicators of any boundaries.

The Driveway: [22] The driveway was an access from the North Side Road to Annie Cook’s property before it was subdivided. The driveway angledup from Annie Cook’s house in a northwesterly direction where it intersects the road. As the Becker Plan shows, the driveway crossedthe northeastern corner of Mr. James Cook’s property. Mr. Cook’s argument is that if one places the intersection of his northern andeastern boundaries on the driveway itself, and then moves 100 feet westerly (the dimension in his deed), that would move the Cook-Podgorski boundary line 50 feet further to the west.

There are a number of problems with this argument. First, the driveway is not

referred to as a boundary in Mr. Cook’s metes and bounds description. Second, this argument assumes that the driveway crossed the intersection of his northern and eastern lines - i.e., it should be a beginning point for running his northern boundary 100 feet to the west. Third, pushing the western boundary 50 feet further west would run Mr. Cook’s eastern boundary through his house and workshop. [ 23 ] What Mr.

Cook’s deed description actually says is this (current adjoining owners are in brackets): All that certain lot, piece or parcel of land situate, lying and being in Riverport, in the County of Lunenburg and Province of Nova Scotia, being more particularly bounded and described as follows: BEGINNING at the intersection of the Southern sideline of the Public Highway with the Eastern sideline of lands now or formerly of the Elisha Ritcey Estate; [Podgorski] THENCE in an Easterly direction along the Southern sideline of the said public road for a distance of One Hundred feet (100') to a point; THENCE in a Southerly direction along the Western sideline of other lands of Annie Morlean Cook [Barry Cook], in a straight line, parallel with the aforesaid Eastern sideline of the said lands, now or formerly of the Elisha Ritcey Estate, [Podgorski] for a distance of approximately Two Hundred feet (200') or to the waters of the Riverport Harbour; THENCE in a Westerly direction along the shoreline of the said Riverport Harbour to the intersection of the aforementioned Eastern sideline of the said lands now or formerly of the Elisha Ritcey Estate [Podgorski] with the shoreline of the said Riverport Harbour; AND THENCE in a Northerly direction along the aforesaid Eastern sideline of the said lands now or formerly of the Elisha Ritcey Estate [Podgorski] for a distance of approximately Two Hundred feet (200') or back to the place of beginning. [ 24 ] That concludes the metes and bounds description.

But it adds in part: SUBJECT TO the perpetual, free and uninterrupted use of the driveway as now existing leading from the public highway across the Northeastern corner of the lands hereinbefore described to the other land of the said Annie Morlean Cook, for the use of Annie Morlean Cook, her heirs, executors, administrators and assigns in common with James Donald William Llewellyn Cook, his heirs, executors, administrators and assigns. [ 25 ] It is important to note that the driveway does not form part of the description of the lot but rather, appears as a right-of-way across the northeastern corner of the lands being conveyed to James Cook.

This does not mean that the driveway is on the intersection of the northern and eastern lines of Mr. John Cook’s land. Nor did Mr. Becker place it there in his 1983 survey of Annie Cook’s lot. He placed the driveway in the northeastern quadrant of what is now James Cook’s land. He did not locate the driveway on the intersection of the northern and eastern lines of James Cook’s property as Mr. Cook now argues. Mr. Becker’s evidence on this was equivocal.

In cross- examination, he said: And I think I said in my report the difficulty I had in interpreting that was that a corner was to be in the vicinity of where the driveway crossed James’ new lot in a northwest-southeast direction. So, I mean, I suppose other issues are raised here, because we’re not even sure if that was the, the correct line they made. I surveyed it as such. That was the adjoinership then, but I mean, the who ..., to me the whole, you know, the whole issue was open to question from, ... the very start. This is not a ringing endorsement of Mr. Cook’s

interpretation by his own surveyor. [ 26 ] The biggest problem with measuring Mr. Cook’s northern line from the driveway is that it moves his eastern boundary 50 feet to the west, resulting in that boundary running through the middle of his house and large workshop. In other words, Mr. Cook would have

built his home and workshop largely on his mother’s property. [ 27 ] When James Cook’s lands were conveyed to him in 1977 by his mother, she swore a statutory declaration at that time deposing, amongst other things: ... the lands described in the said Deed to which this, my Statutory Declaration is attached are the lands which I gave to my said son, James Donald William Llewelyn Cook in the summer of 1973 and which since that time I have regarded as being his property under the terms set out in the said Deed. [ 28 ] If Mr. Cook’s present

interpretation is correct, both he and his mother were mistaken about their joint boundary (his eastern property line) in 1977. To argue in the alternative, as Mr. Cook does, that there is an additional 10,000 square feet somewhere is not consistent with either James Cook’s property description or the 1987 description in the deed of Annie Cook’s remaining lands to her son, Barry. [ 29 ] The application judge grasped this evidence. This was his exchange with Mr.

Becker: THE COURT: ...if you’re saying, if you’re going to say instead of starting up there on the top right-hand pin, you’re going to come 50 feet to the left, obviously that’s going to move everything to the left 50 feet. Right? A. Well, it would, yes. THE COURT: And it, so that, the integrity of the original lot, isn’t it compromised? A. Well, if, if no one knew where the corners were. I mean, that’s what I’m trying to say, is that, that if the corner is referred to as in relation to a driveway, then there is some question as to where this lot could be located.

It’s, it’s, it’s bounded by the, the Ritcey property on the west, and the, and the driveway on the east, because that, the corner is on the driveway. THE COURT: So when they built those buildings, they, they, they would have, if they followed your theory, when those buildings were built, they were built on somebody else’s land? A. It’s possible. THE COURT: Well, what.... A. Right THE COURT: What other alternative is there? If you’re.... A. Well, it was a vacant lot at the time. It.... THE COURT: But somebody built that house. Someone built that garage down there. MR. DI COSTANZO: Mr. Cook.

THE COURT: Yes, Mr. Cook. MR. DI COSTANZO: Uh hum. THE COURT: You know, he would have effectively not known that he was doing it, but wouldn’t he be building the land on, on his mother’s old property? A. I suppose it’s.... THE COURT: Building the houses... A. ...possible. THE COURT: ...on his mother’s old property. A. That’s what it would turn out to be, if... THE COURT: Yes. A. ..that was the,... THE COURT: Okay. A. ...the

interpretation. THE COURT: All right. [ 30 ] This was powerful evidence that Mr. Becker’s novel opinion concerning the location of the Cook-Podgorski boundary line was highly problematic. The Drainpipe : [ 31 ] Then, Mr. Cook argues that reference to a drainpipe in an old deed indicates that Ms. Podgorski’s lands north of the road were above the James Cook lands, so that their mutual boundary could not be an extension of her eastern line above the public road. In his factum, Mr. Cook faults Mr. Berrigan for not locating any pipe or drains: “43.

Berrigan ... did not show the drain that entered the northwestern corner of the lot under dispute ...”. The Cooks themselves were ambivalent about the location of the drain. In cross- examination, James’ brother, John Cook, placed the drain slightly to the west of a power pole which James Cook claims to be his western line - i.e., outside the disputed lands. For his part, James Cook deposed that the drain, “continues to be located across the western portion of my land and within the disputed area ...”. [ 32 ] In fact, neither surveyor located any drainpipes on Mr. Cook’s land. What Mr.

Cook refers to here is the following in a 1918 deed to William Cook, one of his predecessors. After describing a one acre lot being conveyed, the deed carries on:

... with the understanding that the owner of the property line north or on the opposite side of the road of the aforesaid property is to dig adrain and lay piping to extend his cellar drain from where it now exists to the water shore when requested to do so by the owner of theproperty. [33] Mr. Cook infers that the neighbour who had this obligation to dig and lay a drainpipe must be Ms. Podgorski’s predecessor.However, there is no such obligation in Ms. Podgorski’s chain of title. This argument came out during cross-examination of Mr. Becker.Ms.

Podgorski’s lawyer pointed out that the obligation to dig a drain was referred to in a deed of property to the east of the Podgorskiland known as the “Allen property”. This property is also north of Mr. James Cook’s lot. It is east of Ms. Podgorski’s property. It ismuch more likely that the obligation to run pipes over the Cook lands relates to the Allen property, not the Podgorski lands. [34] Mr. Cook’s argument depends on an inference he invited the court to draw. The physical and survey evidence is equivocal at bestand the argument is not supported by the Podgorski chain of title.

The judge made no palpable and overriding error in ignoring it. Acreage: [35] Mr. Cook also complains that Mr. Berrigan failed to take into account the “area of what was conveyed in 1906 and 1918" to Mr.Cook’s predecessors. In fact, there are two deeds each of which describe an acre “more or less”. The deeds refer to abutters, Ritcey Coveand the North Side Road. No distances are mentioned. Mr. Cook argues that there must have been another 50 feet of property westerlyalong the North Side Road which pushed the Cook-Podgorski boundary line 50 feet further west.

But a description that refers to propertyas one acre “more or less” is imprecise. The case law is replete with erroneous acreage estimates; for extreme examples see: Aberg v.Rafuse, (1979) (NS SC), 36 N.S.R. (2d) 56 deed: 374 acres - actual: 58 acres; Bent v. Nova Scotia Farm Loan Board,(1978) (NS CA), 30 N.S.R. (2d) 552 deed - 576 acres actual - 446 acres. Nor does the two acre reference accord withthe modern descriptions in the 1977 and 1987 deeds to James and Barry Cook from his mother. Collectively, they comprise about 1 ½acres. Mr.

Berrigan took these newer deeds and descriptions into account when fixing the Cook-Podgorski boundary. Occupation: [36] Finally, Mr. Cook submits that Mr. Berrigan did not take into account “occupation” which is in the “hierarchy of evidence” andwhich a surveyor should consider when setting a boundary. Mr. Berrigan testified that there was no evidence of occupation on theground indicating a line between Ms. Podgorski and Mr. Cook when he did his survey. For his part, as described further below, Mr.Becker inferred occupation from what he was told and historical evidence. [37] Mr.

Cook relies on evidence of a family garden cultivated on the disputed lands as well as evidence of digging a ditch to drain thearea, recreational use and some clearing and burning of brush. This evidence is better addressed under the “Adverse Possession” issueadvanced by Mr. Cook. It suffices to say here that it does not clearly establish any defined boundary line between the Cook-Podgorskipredecessors. [38] Mr. Becker relied on aerial photography to buttress his argument that there was evidence of possession which justified him pushingthe Cook-Podgorski line 50 feet further west.

The aerial photographs he relied upon went back to 1986. The period from 1986 onwardswas largely covered by the evidence of Ms. Podgorski’s predecessor, Mr. Rose whose evidence was accepted by the judge and isdiscussed further under “Adverse Possession”. But these aerial photographs do not support the boundary Mr. Becker established. Thejudge himself had the benefit of viewing these photographs and hearing the evidence concerning them. He concluded: [30] Mr. Becker's expert report contained aerial photographs of the area in 1965, 1971, 1976, 1986. 1992 and 2001.

These photographswere enlarged and marked as exhibits in this application. Mr. Berrigan testified that when he did his survey in 2009 he saw no evidenceof occupation by Mr. Cook. When I apply Mr. Berrigan's line to each aerial photograph I cannot observe any evidence of occupation.There is clearly no evidence in the 1965, 1971, 1976, 1986 and 1992 photographs save from the mowing of some grass in the 1976, 1986and the 1992 photographs. In the 2001 photograph two boats are located just over the line. [39] The judge made no palpable and overriding error when he considered the evidence relied upon by Mr.

Cook for the inferences heinvited the judge to draw respecting the western boundary of his land.

Issue 2: The judge ignored relevant evidence [40] Under this issue Mr. Cook largely repeats arguments disposed of under Issue #1. He again refers to the obligation to extend cellardrainpipes in the 1918 deed to William Cook and the driveway reservation in the 1977 deed to John Cook addressed at ¶ 22 to 33 above. [41] Mr. Cook also accuses the trial judge of “ignoring” the deed descriptions in both the Cook deeds and the Podgorski title.

Theargument here is that a “plain reading” of the 1906 and 1918 Deeds of William Cook show that the Cook family “... owned 320 feetbeginning at the established Myra line and running in a westerly direction”, confirmed by the Becker plan prepared on January 31, 2011.With respect, the 1906 and 1918 deeds do not make it “clear” what the Cooks owned abutting the public road. No distances are providedin those deeds. Mr. Cook argues that because two acres (more or less) was conveyed, the northern dimension along the public road musthave been 320 feet. This, of course, assumes that a full two acres was conveyed.

It is not consistent with the later conveyances (in 1977and 1987) which only describe an acre and a half. And while it is true that the 2011 Becker Plan does show this 320 feet, that includes 50feet beyond what is described in Mr. Cook’s deed. Mr. Becker’s 2011 plan was prepared after litigation began. It is not consistent withthe 1983 plan he did for Mr. Cook’s predecessor, his mother, Annie Cook. Although that 1983 plan is not a full survey of the JamesCook lands, his sketch of James Cook’s western boundary is consistent with the present claim of Ms. Podgorski, the description in Mr.James Cook’s deed, and Mr.

Berrigan’s opinion. Issues 4 and 5: Ignoring law of survey and failing to apply the law of survey [42] Mr. Cook argues these issues together and once again complains that the trial judge failed to mention and apply the principles inthe Halliday case. [43] The fact that the judge does not refer to the Halliday case does not mean that he made an error of law. Halliday was argued beforethe judge. He is presumed to know the law and there is no need for him to recite the case or to explicitly set out the principles in it. Thereal question is whether correct principles were applied: Lawrence v.

Toronto Humane Society, (ON CA), 212O.A.C. 263 at ¶ 59; Hug v Bliss, (BC CA), 112 B.C.A.C. 242 at ¶ 12. [44] In advancing these arguments, Mr. Cook returns yet again to the drainpipes referred to in the 1918 deed to William Cook, thedriveway on James Cook’s land and “indices of original occupation by the Cook family”. The “evidence of hierarchy” was raised by Mr.Cook’s counsel during cross-examination of Mr. Berrigan. The “indicia” on which Mr. Cook relies do not relate directly to the boundaryline now claimed by him for reasons discussed above (¶ 22-33). The judge considered all of these arguments.

He was not persuaded bythem. The evidence supported him. Issue 3: Failure to admit hearsay evidence [45] On appeal Mr. Cook made no oral argument on this issue. He relied on the submissions in his factum to support this ground ofappeal. After citing case law distinguishing between threshold reliability and ultimate reliability (Phillips v. Keefe, 2012 BCCA 123,¶109), Mr. Cook makes a generic argument that “the statements in the affidavit were supported by circumstantial evidence that supportedand corroborated the statements made as, for instance, found in the deed evidence.

At the stage that the issue was raised, this evidencewas before the judge. In our submissions the statements should have been admitted and then weighed against their ultimate reliability incoming to a decision.” [46] It is difficult to know what Mr. Cook complains of here. Some hint is offered in the description of the issue that “... It was offeredto establish why the Appellant believed himself to be the owner of the disputed lands.” This could be relevant to a claim of possessionunder colour of title (see ¶ 49(4) to (6) below). But Mr.

Cook’s own surveyor is ambivalent about whether his deed includes the disputedlands. Certainly his plan suggests that the deed does not include the disputed lands. Colour of title only applies to land in one’s deed.Without that, intention is irrelevant. Relevance is the fundamental threshold for admissibility. [47] In any event it is not apparent how admission of the excluded statements would have affected the unfavourable outcome of the casefor Mr. Cook. First, there is a credibility issue (¶ 59 below). Second, the argument depends on the Court agreeing with Mr.

Cook’sinterpretation of the deeds, surveys and other evidence. For reasons already described, those

interpretations are unsustainable . Issue 6: Adverse Possession

[48] There were no issues taken with the trial judge’s recitation of the law. Rather, Mr. Cook says that the judge either ignored ormisconstrued the evidence of possession. The judge cited Lynch v. Nova Scotia (Attorney General), [1985] N.S.J. No. 456 (Q.L.); Spicerv. Bowater-Mersey Paper Co., 2004 NSCA 39, and Fralick v. Dauphinee, 2003 NSCA 128. [49] It will be useful to remind ourselves of the relevant principles before turning to their application to the facts:

(1) The law presumes the legal owner to be in possession; i.e., that seizin follows title. This presumption is not compromisedbecause the owner is not in actual occupation, (Ezbeidy v. Phalen, (1957), (NS SC), 11 D.L.R. (2d) 660 (N.S.S.C.)approved in Fralick at ¶ 40);

(2) To oust the legal owner, it is necessary to establish actual adverse occupation which is exclusive, continuous, open andnotorious for the requisite period of 20 years, (Fralick, ¶ 40);

(3) The conduct of the possessor must be that of an owner which would exclude the true owner from the land, (Brown v. Philipset al, (1963) (ON CA), 42 D.L.R. (2d) 38, (Ont. C.A.) approved in Fralick, ¶ 40);

(4) A possessor may have constructive possession of more than what he occupies if he has colour of title - i.e., a deed - whetheror not the deed is valid, (MacDonald v. MacCormack, 2009 NSCA 12, ¶ 93). Otherwise, he can only claim what he actually occupies;

(5) To claim constructive possession, the adverse possessor must have a bona fide belief that he has title, (MacDonald v.MacCormack, ¶ 94);

(6) But there can be no constructive possession based on the possessor’s belief where his deed does not include the land overwhich possession is claimed, (MacDonald v. MacCormack, ¶ 95; Mason v. Mason Estate, (1999), 1999 NSCA 63 , 176 N.S.R.(2d) 321 (C.A.), ¶ 31 to 33; R. B. Ferguson Construction Ltd. v. Nova Scotia (Attorney General), (1989) (NS CA), 91N.S.R. (2d) 226 (N.S.C.A.); Rafuse and Rafuse v. Meister, (1979) (NS CA), 32 N.S.R. (2d) 217 (N.S.C.A.) at ¶ 22-25; Wood v. LeBlanc, (1904) (SCC), 34 S.C.R. 627 (S.C.C.)).

(7) The type of possession required varies with the nature of the land: Whether there has been sufficient possession of the kind contemplated by the statute is largely a question of fact in each case in whichdue regard is to be had to the exact nature and situation of the land in dispute. Possession must be considered in every case with referenceto the peculiar circumstances, for the facts constituting possession in one case may be wholly inadequate to prove it in another.

Thecharacter and value of the property, the suitable and natural mode of using it, the course of conduct which the proprietor mightreasonably be expected to follow with a due regard to their own interests, are factors to be taken into account in determining thesufficiency of possession. Anger and Honsberger, Law of Real Property, 3rd Ed., §29:60.80. And for a very useful history and

summary of applicable principles, see Nova Scotia (Attorney General) v. Brill, 2010 NSCA 69, ¶ 127-155. [50] In Nova Scotia, no one can obtain adverse possession against lands registered under the Land Registration Act unless the necessaryperiod of possession concluded prior to registration, (Land Registration Act, s. 74(1)). There is an exception for claims of less than 20%of an owner’s land by an abutter (s. 74(7) and (8)). [51] Adverse possession claims are founded on statutorily established criteria which extinguish the owner’s title.

Section 10 of the

Limitation of Actions Act , R.S.N.S. 1989, c. 258, bars a right of re-entry or legal action after expiry of the requisite limitation period: 10 No person shall make an entry or distress, or bring an action to recover any land or rent, but within twenty years next after the time at which the right to make such entry or distress or to bring such action first accrued to some person through whom he claims, or if such right did not accrue to any person through whom he claims, then within twenty years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to the person making or bringing the same. [ 52 ]

Section 13 of the Act makes clear that mere entry on land does not constitute possession: 13 No person shall be deemed to have been in possession of any land, within the meaning of this Act, merely by reason of having made an entry thereon. R.S., c. 258, s. 13. [ 53 ]

Section 22 then extinguishes the title of the owner: 22 At the determination of the period limited by this Act to any person for making an entry, or distress, or bringing any action, the right and title of such person to the land or rent, for the recovery whereof such entry, distress, or action respectively might have been made or brought within such period, shall be extinguished. [ 54 ] The effect of the statute is to foreclose the right of the lawful owner to bring any proceeding to eject the adverse claimant and to extinguish his title. It does not confer title on the adverse possessor.

But in practice, no one could challenge his possession if he had successfully maintained a possession defence against the true owner. [ 55 ] There is a difference between an adverse possessor who enters under colour of title from someone who has no such claim. Possession under colour of title extends to all property in one’s deed. Possession without colour of title only extends to what is actually occupied, (see cases at ¶ 49(6); especially Wood v. LeBlanc , per Taschereau, C.J.C.). As Mr.

Cook’s deed did not include the disputed lands, he could only claim what he or his predecessors had continuously, adversely occupied over a 20-year period. [ 56 ] Although Mr. Cook testified that he believed that his deed included the disputed lands, there was much evidence that contradicted this belief. His own survey does not show this. The dimensions in his deed are not extensive enough to include both his house and the disputed lands. He did not object to Mr. Rose’s survey markers - which limit his boundary to the line established by Mr. Berrigan - because he said he had not surveyed his land.

That survey would be unnecessary if he thought his deed included the disputed lands. Moreover, the judge accepted Mr. Rose’s evidence that Mr. Cook sought and obtained permission to use part of the disputed lands. None of this supports a “colour of title” claim to possession by Mr. Cook. [ 57 ] It is noteworthy that other than a recent in-filled area on the shoreline, all of Mr. Cook’s buildings and improvements to his land are within the dimensions of his deed. His house, extensive driveways and parking areas, large workshop, drilled and dug well are all west of the disputed lands (¶ 59 below).

None of them encroach on the disputed lands despite his claim of long ownership and use. [ 58 ] The law requires very clear evidence of adverse possession. In Lynch , Justice Hallett put it this way: 7 The legal concept which allows a person to acquire possessory title good against the holder of the legal title is based on the premise that a legal owner cannot stand aside and allow a trespasser or co-tenant to make improvements to the property and pay the taxes over many years and then come in and claim it, even though he could see the other was in possession.

As a safeguard to the legal owner, the Courts have insisted that the possession be of the quality described before the legal owner's title is extinguished; otherwise there could be great injustices if by doing sporadic, unobservable acts on the land a person could acquire possessory title.

Hence the care which should be taken by a Court before a finding is made that the title of the legal owner to woodland in particular, is extinguished as the acts relied upon are very often sporadic in nature and unobserved by the true owner yet can qualify as being acts that are consistent with the limited use a person who owns land of that nature would make of such land. 8 As claims for possessory title extinguish the title of the legal owner pursuant to a limitations Act, the Court should only act on very cogent evidence that proves that the person's possession has been visible, exclusive and continuous possession for the required

statutory period . Legal owners should not be dispossessed where land is such that the legal owner would not make a great deal of use of the land, such as wood land, particularly if the claim is made not by a trespasser but by one co-tenant or more against others.

Section 12 of the Limitation of Actions Act provides that no person shall be deemed to have been in possession of any land within the meaning of the Act merely by reason of having made an entry thereon. Where the acts of possession relied upon with respect to wood land are the occasional unobserved cutting of logs and firewood from the property, such acts do not improve the property even though they evidence the intention of one co-tenant to possess it exclusively.

It cannot be too strongly emphasized that evidence of possession to extinguish title must be of a quality that has been required by the Courts for hundreds of years. Each case turns on its own facts. [Emphasis added] Likewise in Spicer v. Bowater Mersey Paper Co. , 2004 N.S.J. No. 104 , the Court of Appeal said: 20 From this review of the authorities it is clear that the claimants of possessory title have the burden of proving with very persuasive evidence that they had possession of the land in question for a full 20 years and that their possession was open, notorious, exclusive and continuous .

They must also prove that their possession was inconsistent with the true owner's possession and that their occupation ousted the owner from its normal use of the land. As well, possession by a trespasser of

part is not possession of the whole. Every time the owner, or its employees or agents, stepped on the land, they were in actual possession. When the owner is in possession, the squatter is not in possession. [Emphasis added] [ 59 ] In applying these principles, it must first be noted that Justice Coady preferred the evidence of Ms. Podgorski’s predecessor, Kevin Rose, to that of Mr. Cook: [32] Mr. Rose testified that during his ownership he used the shore lot for a variety of purposes. He stated that in 1984 he gave Mr.

Cook permission to mow a triangular piece of the shore lot adjacent to his property about 10 feet in width at the street line. He also said that in 1997 Mr. Cook asked if he could store his boat on the mowed area of the shore lot and he permitted Mr. Cook to store the boat as requested. [33] Much of Mr. Rose's affidavit evidence is challenged in a supplementary affidavit filed by Mr. Cook. I found Mr. Rose to be a forthright and honest witness. I found nothing to suggest animus towards Mr.

Cook either when they were neighbours or presently. [ 60 ] This finding would dispense with any claims of adverse possession by Mr. Cook from the time of Mr. Rose’s ownership in 1983 until 2003. Mr. Rose gave evidence that Mr. Cook sought permission to mow grass and use some of the water front lot to store boats and vehicles. Mr. Rose also gave permission to dig the ditch depicted in the Becker Plan. Accordingly, none of these acts could be “adverse” to the Podgorski title. Moreover, having accepted Mr. Rose’s evidence rather than Mr. Cook’s, it is hard to see how that would not taint Mr.

Cook’s evidence of ownership and/or possession prior to 1983. If indeed he enjoyed title or exclusive possession prior to 1983, why would he seek Mr. Rose’s permission for any use of the disputed lands? [ 61 ] Mr. Cook led evidence that his parents gardened on the disputed lands from the late 40's to 1961 or 62. He and his brother burned brush on those lands over the years. The judge found: [37] The garden referred to in the Cook 's evidence is vague as to its location. I find that Mr. Cook has not established, on a balance of probabilities, the location of the garden.

I cannot conclude that the area where tractors turned around extended beyond Mr. Berrigan's line. Further, the evidence is uncertain as to when the garden existed or for how many years. The evidence of recreational use is not sufficient to oust the title of Ms. Podgorski. The evidence of burning brush suffers from the same deficiency. I am also of the same view in relation to the parking of vehicles and boats on the disputed area. This is not the kind of evidence needed to support a claim based on adverse possession. In conclusion, I find that Mr. Cook has failed to establish possessory title. [ 62 ] Mr.

Cook submits the trial judge is wrong when he characterized the evidence as vague regarding the garden’s location. Mr. Cook points to evidence which he says clarifies where the garden was located. But even this evidence does not establish 20 years of open, continuous, notorious, adverse and exclusive use of the garden, let alone the disputed lands. In fact, gardening concluded in 1961 or 62. Some years later, Mr. Cook’s mother maintained a strawberry patch in the area. James Cook’s brother, John, placed the strawberry patch

closer to their house than the garden. [63] There was also evidence that the remains of an old wire fence were found lying on the ground on the disputed lands in 1949. Thisis not evidence of a boundary between Ms. Podgorski’s predecessor and the Cooks who should presumably know something about theprovenance of that wire fence if, indeed, it marked their boundary. But none of their evidence - including their proposed hearsayevidence - spoke of where this fence came from or what purpose it served. [64] Whether acts of occupation are sufficient to establish adverse possession is a question of fact in each case.

In Fralick, for example,Justice Oland observed: [46]When the evidence pertaining to parking, the trailer and the picnic table are excluded, the acts of possession by the respondent whichremain relate to playing, the worm bed and grass cutting.

In my view, having in mind the nature of this particular property, the totality ofthis evidence does not constitute the "very cogent evidence that proves that the person's possession has been visible, exclusive andcontinuous possession for the required statutory period" required according to Lynch, supra for a claim for possessory title to extinguishthe title of a legal owner. [65] Perhaps the high water mark for the land owner against an adverse possessor is McLeod v. McRae, (1918) (ONCA), 43 O.L.R. 34, where C. J.

Mulock commented at page 55: I do not think the acts relied upon by the defendant were such as to give him a title to the land under the Statute of Limitations. Thoseacts are: payment of taxes, fencing, cutting and removing timber from and pasturing cattle on the lands in question. In order to acquiretitle under the statute, open, visible, and continuous possession is necessary. The cutting and removal of timber and the pasturing ofcattle in this case were but intermittent acts of trespass and do not constitute possession as against the true owner.

As each act of trespassceased, the possession quoad the defendant became vacant, and the law presumes that the real owner then resumed possession. ...therefore there was no continuous possession. ... Mere fencing, or payment of taxes, unaccompanied by actual, visible, and continuouspossession, could not give a title. [66] The application judge reviewed the evidence of use and occupation. He was not satisfied that it was sufficient to establish adversepossession. It did not rise to the “very cogent evidence” which this court has said is required “to dispossess a legal owner”, (Fralick, ¶46).

Absent “palpable and overriding error”, this court will not interfere. [67] The judge did not err either in fact or in law in concluding that Mr. Cook failed to prove adverse possession. Costs [68] Mr. Cook also appeals the judge’s $20,207.16 award of costs to Ms. Podgorski. These consisted of a sum based on an “amountinvolved” plus $2,000 a day for three plus days of this 3 ½ day hearing. That totalled $16,750.00. The balance constituted disbursements. [69] Mr. Cook says that the judge erred in selecting an “amount involved” of $75,000.00 and did not account for “divided success”,because he dismissed Ms.

Podgorski’s claim for damages. Mr. Cook refers us to this passage in Founders Square Ltd. v. Coopers andLybrand, 1995 NSCA 131 , 1995 N.S.C.A. 131: [48]In the written submissions each party set forth a reasoned explanation for the proposed "amount involved". In the circumstances, Iam not satisfied that in failing to give reasons for choosing an amount within the range the trial judge erred. This is not to say that a trialjudge need never offer reasons for fixing an amount involved.

Where the amount ultimately accepted is not self evidently related to thefactors enumerated in the tariff nor the submissions of the parties, failure to give reasons might constitute reversible error. [70] The application judge found:

[11] The principle issue in this application was the location of the property line. The claim for damages was clearly a secondary issue. Assessment of damages played a minor

part in pre-trial and trial proceedings. Very little of the witness examination involved damages. Consequently I rule that Ms. Podgorski is the successful party. [ 71 ] Civil Procedure Rule 77.02 provides: 77.02(1)A presiding judge may, at any time, make any order about costs as the judge is satisfied will do justice between the parties.

(2) Nothing in these Rules limits the general discretion of a judge to make any order about costs, except costs that are awarded after acceptance of a formal offer to settle under Rule 10.05, of Rule 10 - Settlement. [ 72 ] Civil Procedure Rule 77.06 (1) and (2) require the fixing of costs in accordance with Tariff “A”: 77.06(1)Party and party costs of a proceeding must, unless a judge orders otherwise, be fixed by the judge in accordance with tariffs of costs and fees determined under the Costs and Fees Act, a copy of which is reproduced at the end of this Rule 77.

(2) Party and party costs of an application in court must, unless the judge who hears the application orders otherwise, be assessed by the judge in accordance with Tariff A as if the hearing were a trial. [ 73 ] Civil Procedure Rule 77.18 (

c) describes claims involving non-monetary issues: ... In these Tariffs unless otherwise prescribed, the “amount involved” shall be ... (

c) where there is a substantial non-monetary issue involved and whether or not the proceeding is contested, an amount determined having regard to (

i) the complexity of the proceeding, and (ii) the importance of the issues; [ 74 ] The judge found: [17]The first task is to determine the "amount involved". The rule states that "where there is a substantial non-monetary issue involved ... an amount determined having regard to (

I) the complexity of the proceeding, and (ii) the importance of the issues". This was not a particularly complex issue. The importance factors does not extend beyond the parties. I am setting the amount involved at $75,000.00. The basic scale on Tariff "A" allows an award of $9,750.00. [18]I set the "length of trial" at 3 ½ days which allows for an award of $7,000.00. [ 75 ] Justice Coady applied correct principles. Although he did not explain how he arrived at $75,000.00 as the “amount involved”, the

rule itself gives no guidance other than the principles of complexity and importance. These obviously do not readily lend themselves to quantitative expression. [ 76 ] Ms. Podgorski suggested an“amount involved” based on the $199,900.00 listing price of all her property. Mr. Cook countered with the $18,800.00 assessed value of the water front lot. The judge found these amounts unhelpful. He fixed the “amount involved” at $75,000.00. The costs payable for a 3 ½ day hearing yielded the Tariff “A” calculation on Scale 2 of $16,750.00, exclusive of disbursements.

That does not constitute an unreasonable contribution to the successful party’s legal expenses for a 3 ½ day hearing involving ownership of land. Arguably, it is low. Ms. Podgorski is entitled to a substantial indemnity. Although she was not awarded damages, the judge took that into account. He applied correct principles in the exercise of his discretion. He did not err in doing so. CONCLUSION: [ 77 ] I would dismiss the appeal with costs to the respondent in the amount of $4,500, inclusive of disbursements. Bryson, J.A. Concurred in: Saunders, J.A. Oland, J.A.

ole.gif